Concussion Lawsuits Blindside NFL

This just in: “Hitting your head thousands of times appears to create a disease that slowly and quietly causes your brain cells to die.” For more than a decade, the National Football League (NFL) had steadfastly denied any connection between multiple concussions and permanent brain damage. While the League now publicly champions the prevention of Chronic Traumatic Encephalopathy (CTE), a progressive neuro-degenerative disease caused by repetitive brain trauma, this belated conversion may have come too late to prevent lawsuits potentially worth billions of dollars.

Eric Shelton, who played for the Washington Redskins and Carolina Panthers, suffered a devastating collision during the 2008 preseason that ended his career and left him with transient paralysis, memory loss, and blurred vision — rendering him temporarily unable to work. According to his attorney, the League initially denied Shelton pension benefits on an implausible theory that football had not caused his injuries. Shelton sued to recover those benefits in federal court. While relatively modest damages are at stake, a trial would place the League in the uncomfortable position of downplaying the dangers of concussions in court, even as it posts warnings in locker rooms.

Substantial damages are not unprecedented. In 2000, a jury awarded Merril Hoge, former running back for the Chicago Bears, more than $1.5 million for the alleged mistreatment of his concussion by team physicians — but the case eventually settled for an undisclosed amount. Similarly, Clay Rush, a kicker in the Arena Football League (AFL), sued the Colorado Crush’s team physician in state court last year for alleged malpractice. The plaintiff presumably sued the doctor, an independent contractor, rather than the team or league, because the AFL had gone bankrupt and the Crush ceased to exist.

Under pressure from Congress and the public, the League began fining players for flagrant hits, adopted conservative guidelines for how long players should be sidelined following concussions, fired and replaced its committee on head injuries, and launched a campaign to educate players about the dangers of repetitive brain trauma. As of late December, the League anticipated approximately 269 reported concussions this season — which would be a twenty-one percent increase from 2009 and thirty-four percent higher than 2008. Whether this escalation demonstrates an increased willingness on the part of teams and players to report injuries, as the NFL contends — or the game has simply become more violent — is difficult to say.

The increased scrutiny has followed the players to the sidelines. One week after a concussion forced Chicago Bears’ tight-end Chris Cooley out of the game, the Fox commentators watched in amazement as the normally sure-handed Pro Bowler dropped the first pass of the game. Cameras caught Cooley throwing his helmet to the ground after the play — then appear to lose track of it as it rolled along the sideline. Similarly, Aaron Rogers, quarterback of the Green Bay Packers, returned one week after a concussion, but occasionally appeared to have forgotten the play he had called just seconds earlier. (If his performance in the Divisional Round of the Playoffs is any indication though, Rogers is doing just fine.)

The anti-climatic ending of the saga known as Brett Favre perhaps best epitomizes this violent season. After playing through, and returning from, countless injuries during an astonishing streak of 297 consecutive starts, Favre’s remarkable career ended ignominiously on the bench. In his last start, he was driven to the ground and had his head slammed into the turf. “It was one of the few times that I kind of went blank there for a while.” Over the next week, Favre failed to pass the League’s stricter concussion test and the Packers held him out of the season finale. Favre’s explanation for his longevity should give younger athletes pause: “I think my stubbornness, hardheadedness, and stupidity has enabled me to play for twenty years.” Is that what it takes?

While the NFL has been slow to acknowledge a connection between head trauma and long-term health effects, some enterprising attorneys — citing successful asbestos and tobacco litigation (each with long latency periods) — think they can explain it to juries. Concussions are not generally detectable with imaging technology, however, and only an autopsy can definitively diagnose CTE. The evidence is slowly mounting though, as more and more deceased NFL players donate their brains to research institutions. As one attorney advised last month:

“Players who believe they have a claim against the NFL for failure to provide adequate warning about the link between concussions and cognitive decline should approach an attorney.”